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Justice Dept. issues new guidance for police response to domestic violence, sexual assault | Policies follow investigations of gender-biased policing

The Department of Justice this week issued new guidance to law enforcement agencies, detailing how certain police responses to domestic violence and sexual assault violate victims’ civil rights.

“Gender bias, whether explicit or implicit, can severely undermine law enforcement’s ability to protect survivors of sexual and domestic violence and hold offenders accountable,” said Attorney General Loretta Lynch.  “This guidance – developed in collaboration with law enforcement leaders and advocates from across the country – is designed to help state, local and tribal authorities more fairly and effectively address allegations of domestic violence and sexual assault.  In the days and months ahead, the Department of Justice will continue to work with our law enforcement partners nationwide to ensure that they have the tools and resources they need to prevent, investigate and prosecute these horrendous crimes.”

The guidance comes on the heels of DOJ investigations of gender-biased policing in New Orleans, Puerto Rico, Montana and Arizona that documented the systemic failure of police departments to properly investigate domestic violence and sexual assault cases or to hold police officers accountable when they commit domestic or sexual violence.

“Domestic violence-related calls constitute the single largest category of calls received by police departments, so how police officers respond to domestic violence and sexual assault has a huge impact on the lives of women, families and communities across the United States,” said Sandra Park, senior staff attorney in the ACLU Women’s Rights Project. “Police practices can either help end the cycle of violence or they can perpetuate it.”

Even when an assault clearly qualifies as criminal activity, survivors of domestic violence and sexual assault may face disbelief, victim-blaming, and hostility from law enforcement.

The DOJ guidance calls on local police departments to examine their practices and policies relating to policing of domestic violence and sexual assault, which disproportionately impact women and LGBT people. It lays out the following eight principles that should guide police departments:

  • Recognize and address biases, assumptions, and stereotypes about victims
  • Treat all victims with respect and employ interviewing tactics that encourage a victim to participate and provide facts about the incident
  • Investigate sexual assault or domestic violence complaints thoroughly and effectively
  • Appropriately classify reports of sexual assault or domestic violence
  • Refer victims to appropriate services
  • Properly identify the assailant in domestic violence incidents
  • Hold officers who commit sexual assault or domestic violence accountable
  • Maintain, review, and act upon data regarding sexual assault and domestic violence.

“The new DOJ guidance is a critical tool welcomed by both law enforcement and community advocates that empowers them to work together to improve how domestic violence and sexual assault cases are handled,” said Park. “Survivors must have equal access to an unbiased criminal justice system that offers them protection and ensures that perpetrators cannot act with impunity.”

Courts and the DOJ have concluded that victims of domestic and sexual assault crimes are denied equal protection under the U.S. Constitution when these crimes are treated less seriously than other offenses based on gender bias. Victims’ due process rights are also violated when police commit acts of violence, such as sexual assault or when a victim is put at greater risk as a result of police conduct.

Domestic violence and sexual assault are two of the most prevalent forms of gender-based violence. In the U.S., over a million women are sexually assaulted each year and more than a third of women are subjected to rape, physical violence and/or stalking by an intimate partner in their lifetime, with women of color disproportionately affected.

Background: White House issues guidance on executive order protecting some LGBT workers

The White House early on July 21 issued a statement on President Barack Obama’s signing of an executive order intended to protect federal workers and those who work for federal contractors from discrimination against sexual orientation and gender identity.

The statement and guidance from the White House:

America is built on the fundamental promise that if you work hard, and play by the rules, you can get ahead. But today, millions of Americans in most states in the country go to work every day fearing that they could lose their jobs simply because of who they are or who they love. No current federal law adequately protects lesbian, gay, bisexual, and transgender workers from employment discrimination. This is completely contrary to our values as Americans – and it’s also bad for business.
President Obama declared 2014 a year of action – working with Congress where they’re willing, but acting where he can when they refuse to take action.

As part of this commitment to expanding opportunity for hardworking Americans, today, the President will sign an Executive Order prohibiting federal contractors from discriminating against LGBT employees and prohibiting discrimination based on gender identity in federal employment.

At a critical time for our nation’s economy, we need all of our workers to be focused on making the most of their talent, skill, and ingenuity, rather than worrying about losing their job due to discrimination. The economy functions best when workers are matched to the jobs with the best fit, maximizing their productivity, increasing wages and helping the bottom line for businesses. Discrimination is not just wrong, it also can keep qualified workers from maximizing their potential to contribute to the strengthening of our economy. For decades, companies have found that benefits and inclusive, flexible, and supportive workplace policies make it easier and more cost effective to recruit, retain, and motivate employees. The same logic applies to extending these basic protections and policies to LGBT workers. 

American workers should be judged by one thing only: their ability to get the job done. That’s why the President has long supported federal legislation to explicitly prohibit employers across the country from discriminating on the basis of sexual orientation or gender identity. For forty years, Congress has considered various pieces of legislation meant to address LGBT workplace equality. Last November, the Senate passed the Employment Non-Discrimination Act with strong bipartisan support. However, the House has failed to act.

Today’s action is consistent with the President’s commitment to advancing equality for the LGBT community, as well as his commitment to expanding opportunity for American workers and strengthening American business. And it is consistent with actions being taken by employers, including many federal contractors, across the country to support workplace equality, because they recognize it improves productivity, reduces turnover and supports their bottom line.

• Workplace Inequality Still Impacts Millions of LGBT Workers. Today, only 18 states and the District of Columbia have laws explicitly protecting LGBT workers from being fired because of their sexual orientation or gender identity, and no federal law adequately protects LGBT workers from being fired because of who they are or who they love. According to surveys and studies, more than four in ten lesbian, gay, and bisexual people have experienced some form of employment discrimination based on their sexual orientation at some point in their lives, and 90 percent of transgender employees have experienced harassment, mistreatment or discrimination on the job.

• Employers Are Taking Action on Their Own to Support Workplace Equality – Because They Recognize It Is In Their Interest:According to an analysis of 36 research studies by the Williams Institute at the UCLA School of Law, “LGBT-supportive policies and workplace climates are linked to greater job commitment, improved workplace relationships, increased job satisfaction, and improved health outcomes among LGBT employees.”

• Fortune 500 Companies Support LGBT Workplace Equality. Most of America’s major companies know that workplace equality is important to staying competitive and retaining their best talent, and as a result, nondiscrimination policies are good for business. 91 percent of Fortune 500 companies already prohibit discrimination based on sexual orientation; and 61 percent already prohibit discrimination based on gender identity.

• Small Businesses Support LGBT Workplace Equality. According to research conducted by Small Business Majority, six in ten small business owners believe that employment nondiscrimination laws improve their bottom line by helping employers attract the best and brightest employees. And of small business owners who have adopted nondiscrimination policies to protect LGBT workers, 86 percent report that nondiscrimination policies cost them “nothing or next to nothing,” 2 percent said such policies had a small but significant cost, and none said they had a substantial cost.

• Many Federal Contractors Already Have Policies on LGBT Workplace Equality. Of the largest 50 federal contractors, which represent nearly half of all federal contracting dollars, 86 percent prohibit sexual orientation discrimination and 61 percent prohibit discrimination based on gender identity. In addition, the five top federal contractors, which receive nearly a quarter of all federal contracting dollars, already bar discrimination based on both sexual orientation and gender identity.

• The American Public Supports LGBT Workplace Equality. A recent national survey of 1,200 registered voters found that 63 percent of those surveyed favor a federal law that protects LGBT people from employment discrimination. When asked specifically about LGBT nondiscrimination in federal contracting, another poll found that 73 percent of those surveyed favor such policies.

• States and Local Jurisdictions Support LGBT Workplace Equality. Over the last several years, there has been significant progress in moving LGBT inclusive non-discrimination laws through statehouses and city halls across the nation. Since 2011, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, and Nevada have added gender identity to their existing employment non-discrimination laws. Today, 18 states and the District of Columbia have inclusive non-discrimination laws, and over 200 cities and counties – from small towns like Bozeman, Montana and Vicco, Kentucky to large cities like Houston, Texas and Atlanta, Georgia – prohibit employment discrimination on the basis of sexual orientation and/or gender identity. Nine of the ten most populous cities in the country already have these protections in place. 

• Diverse Faith Communities Support LGBT Workplace Equality. A diverse range of religious communities  and organizations support workplace protections, including the Presbyterian Church (U.S.A.); United Methodist Church, General Board of Church and Society; The Episcopal Church, the United Church of Christ, Justice and Witness Ministries; and the Union of Reform Judaism. Majorities of Christian denominations polled support workplace protections, including 76 percent of Catholics, 75 percent of white mainline Protestants, 61 percent of minority Protestants, and 59 percent of white evangelical Protestants. Another poll shows that 74 percent of born-again Christians favor LGBT workplace protections. 

• Additional Information about Obama’s Executive Order: Executive Order 11246, issued by President Lyndon B. Johnson, prohibits federal contractors from discriminating “against any employee or applicant for employment because of race, color, religion, sex, or national origin.” President Obama’s Executive Order will add sexual orientation and gender identity to the list of protected categories.

Obama’s Executive Order does not allow for any exemption beyond the one added by Executive Order 13279, issued by President George W. Bush, which permits religiously affiliated contractors to favor individuals of a particular religion when making employment decisions, by specifying that Executive Order 11246, “shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.” In addition, under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit.

Executive Order 11246 governs only federal contractors and federally-assisted construction contractors and subcontractors who do over $10,000 in Government business in one year. It does not affect grants and President Obama’s Executive Order does not impact the administration of federal grants. The Order is administered and enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). As part of these duties, OFCCP conducts compliance reviews, receives complaints from individuals who believe they have been discriminated against, and provides technical assistance to contractors regarding their contractual obligations.

Executive Order 11478, issued by President Nixon, bars discrimination against federal employees on the basis of race, color, religion, sex, national origin, disability, and age, and was amended by Executive Order 13087, issued by President Clinton, to include sexual orientation. 

Obama’s Executive Order will add gender identity to the list of protected categories.  The Equal Employment Opportunity Commission and other federal agencies already apply Title VII of the Civil Rights Act of 1964 to protect federal employees from discrimination on the basis of gender identity as a form of sex discrimination. The President believes it is important to explicitly prohibit — in both Executive Action and in legislation — discrimination on the basis of gender identity.

Education Department issues guidance on Title IX protections for transgender students

The U.S. Department of Education on April 29 issued guidance clarifying that federal Title IX prohibits discrimination against transgender students.

The Human Rights Campaign, the nation’s largest LGBT civil rights group, welcomed the guidance issued by the Department’s Office for Civil Rights, which says “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.”

“Every student has a fundamental right to go to school in a safe learning environment that respects who they are as a person,” said HRC legal director Sarah Warbelow in a news release. “We thank the Department of Education for doing the right thing and standing with transgender and gender non-conforming students who deserve nothing less than a safe learning environment free of discrimination.”

About 78 percent of transgender children in grades K-12 reported being harassed in school, 35 percent physically assaulted and 12 percent sexually assaulted, according to a 2011 report from the National Center for Transgender Equality and the National Gay and Lesbian Task Force.

An HRC Foundation survey of more than 10,000 LGBT youth found that more than four in 10 gender-expansive youth report “frequently” or “often” being called names involving anti-gay slurs and 40 percent report being excluded by peers “frequently” or “often.”

And more than half of gender-expansive youth reported “never participating” in the majority of activities listed in the survey (e.g., sports, church/religious youth groups and service organizations) out of fear of discrimination.

“This guidance is crystal clear and leaves no room for uncertainty on the part of schools regarding their legal obligation to protect transgender students from discrimination,” said Ian Thompson, ACLU legislative representative. “The Office for Civil Rights must now take the next step and issue comprehensive guidance on Title IX and transgender students.”